Haryana

Yamunanagar

CC/1259/2011

Ajaib Singh S/o.Kehar singh - Complainant(s)

Versus

Retd.Ltd.Col. - Opp.Party(s)

Parmod Bansal

12 Jan 2017

ORDER

BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM YAMUNA NAGAR JAGADHRI

 

                                                                                    Complaint No. 1259 of 2011.

                                                                                    Date of Institution: 21.12.2011

                                                                                    Date of Decision: 12.01.2017

 

        Ajaib Singh son of Shri Kehar Singh, aged about 51 years, resident of village Sudhail, District Yamuna Nagar.

                                                                                                            

                                                                                                                 ...Complainant

                Versus

1. Retd. Lt. Col. Wattan Singh, Flat No.932, Sector 29 Arunvihar, NOIDA, UP 201301
2. Col. Attar Singh, Gurjjar Bhawan, Kotla, PO Pathpur Colony, Delhi 110091.
3. Power Grid Corporation at Bhamboli, District Yamuna Nagar Haryana, through its authorized signatory.
4. The Commissioner, Employees Provident Fund Organization, Sub Regional Office, Eastern Delhi, F 117-118, Main Bazar, Luxmi Nagar, Delhi 110092.

                                                                                                              ..Respondents.

 

BEFORE:         SH. ASHOK KUMAR GARG …………….    PRESIDENT

                         SH. S.C. SHARMA  …………………………MEMBER  

 

Present:           Sh. Parmod Bansal, Advocate, counsel for complainant.

                        Sh. Ashwani Batra, Advocate, counsel for respondent No.1.

                        Sh. SK Ahuja, Advocate for respondent No.2

                        Sh. SK Rana, Advocate counsel for respondent No.3.

                        OP No.4 already ex parte.

 

ORDER   

1.                     The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant had worked as a Security man in Power Grid Corporation at Bhamboli, District Yamuna Nagar, Haryana i.e. respondent No.3 (hereinafter referred as OP No.3) for the period from 01.12.2005 to 30.11.2008 whose security contract is with OP No.1, who deputed the OP No.2 and the complainant is still continuing working there. Complainant was posted in the premises of OP No.3 by the OP No.1 and 2. During the service period, an amount of EPF had been deducted from the salary of complainant and he had been allotted a PF No.DL-34887/118 by the OPs and employer of complainant i.e. OP No.1 and 2 also contributed his share in the said EPF which becomes approx. Rs.42,000/- from 01.12.2005 to 30.11.2008. Now, the complainant requested the OP No.4 to pay the amount of EPF deducted for the abovesaid period, but the OPs had sent a sum of Rs.8899/- only, whereas amount of EPF deposited by employer as well as share of employee came to more than Rs.42,000/-. After receiving this amount, the complainant wrote many letters to OPs to  look in the matter and to send the details of his correct EPF but all in vain. Lastly prayed for directing the OPs to issue the details of EPF Account from 01.12.2005 to 30.11.2008 and remit the said amount of EPF along with interest from the accrued date till realization of the amount to the complainant and further directed to pay on account of mental agony, harassment and financial losses and litigation expenses.

3.                     Upon notice, OPs No.1 to 3 appeared and filed their written statement separately. OP No.1 appeared and filed its written statement taking some preliminary objection such as complaint is not maintainable; the complainant has no locus standi; the complainant is bad for mis-joinder and non joinder of necessary parties; complainant has not come with clean hands before this Forum and has concealed the true and material facts from this Forum; present complaint is false and frivolous; present complaint is time barred; Forum has no jurisdiction to entertain this complaint and it is submitted that OP No.1 is retired Army Officer and after his retirement he started security service business under the name and style M/s Yak Security Services as Proprietor thereof. OP No.2 is also a Retd. Army Officer and running the business of providing security services. After coming to know about the factum of enrollment and empanelment and his Firm i.e. M/s Yak Security Services with DGR, the OP No.2 approached the OP with the proposal that whatever work contract answering OP and his firm i.e. M/s Yak Security Services gets sponsored by the DGR, the same could be executed effectively by the OP No.2 as he was having long term experience in the filed of security services. The OP No.2 also proposed that he is ready to bear all the responsibilities and liabilities towards wages, statutory liabilities like EPF, ESIC, gratuity, Service Tax and other expenses in respect to any contract procured and awarded to the answering OP who after considering the proposal form of the OP No.2 agreed to enter into a partnership agreement and accordingly a collaboration/partnership agreement dated 10.06.2004 was executed and registered with Registrar of Firms at Delhi under the Indian Partnership Agreement Act, 1932. As per terms and conditions of the said partnership, the answering OP was to make the payment of Rs.350/- per security guard to the OP employed on the role of “ M/s Yak Security Services” and on merit rest of the pleadings as mentioned in the complaint were denied and lastly prayed for dismissal of the complaint.

4                      OP No.2 has appeared and filed its written statement by taking some preliminary objections such as present complaint does not fall under the purview of the consumer Protection Act; complainant has been making a false claim in the court of law; the present complaint is hopelessly time barred as the matter relates to the year 2008 and on merit it is submitted that the answering OP No.2 had already left the contract and now the OP No.2 is not related and is not responsible and liable for the said contract. The contract was initially in the name of OP No.1. The contract for providing service was terminated on 30.11.2008. Now, the OP No.2 has not been providing service at the premises of OP No.3 after 30.11.2008. The complainant is demanding the amount as per only guess work whereas whatever amount was deducted from the salary of the complainant, that amount deposited as per law. Hence, there is no deficiency in service or unfair trade practice qua the OP No.2 and lastly prayed for dismissal of the complaint.

5.                     OP No.3 appeared and filed its written statement taking some preliminary objection such as complaint is not maintainable; complainant does not fall within the ambit of consumer; this Forum has got no jurisdiction to entertain and try the present complaint and on merit it is submitted that no such intimation was ever given to the answering OP No.3 by the complainant and has filed the false and frivolous complaint before this Forum and lastly prayed for dismissal of the complaint.

6.                     As none appeared on behalf of OP No.4 hence the same was hereby proceeded ex parte vide order dated 11.06.2012.  

7.                     In support of the case, learned counsel for the complainant tendered into evidence affidavit of the complainant as Annexure CW/A and Photocopy of Bank Statement as Annexure C-1, Letter to EPF Commissioner, Luxmi Nagar, Delhi as Annexure C-2, Legal Notice dated 04.09.2011 as Annexure C-3, Postal receipt as Annexure C-4 and C-5, Letter to Shri Attar Singh Gurjjar through Registered AD as Annexure C-6, list of Yak Security Services as Annexure C-7 and closed the evidence on behalf of complainant.

8.                     On the other hand, ld. counsel for the OP No.1 tendered into evidence affidavit of Lt. Col. (Retd.) Wattan Singh as Annexure RW/A, photocopy of partnership/collaboration Agreement as Annexure R-1, photocopy of Form A as Annexure R-2, Letter to Dy. Manager (C&M) Power Grid Corporation of India Ltd. as Annexure R-3, Letter to Mohinder Kumar as Annexure R-4 and closed the evidence on behalf of OP No.1.

9.                     The OP No.2 failed to tender any evidence despite so many opportunities, hence his evidence was closed by Court order on 29.04.2016. 

10.                   On the other hand, OP No.3 tendered into evidence documents such as photocopy of Bills from the period December, 2005 to November, 2008 as Annexure R3/1, photocopy of wages receipt for the month of November, 2008 of Yak Security Services as Annexure R3/2, photocopy of payment advice note as Annexure R3/3, photocopy of documents Annexure R3/4 to R3/105 and closed the evidence on behalf of OP No.3.

11.                   We have heard the counsels of both the parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

12.                   The only grievances of the complainant is that he had worked as Security Man in Power Grid Corporation at Bhamboli, District Yamuna Nagar i.e. OP No.3 for the period from 01.12.2005 to 30.11.2008 under the Security contract with the OP No.1, who further handed over work to the OP No.2 and during the service period amount of Employee Provident Fund (EPF) was deducted from the salary of the complainant vide Provident Fund Account No. DL-34887/118 by the OPs. Employer of the complainant i.e. OP No.1 and 2 also contributed his share in the said Employee Provident Fund account which becomes near about Rs.42,000/- from 01.12.2005 to 30.11.2008. However, OP sent a sum of Rs.8899/- only against near about Rs.42,000/-. After receiving this amount complainant made so many requests to the OPs, to look into the matter and to send the details of his correct amount of EPF but all in vain.

13.                   On the other hand, Learned counsel for the OP No.3 i.e. Power Grid Corporation argued at length that there is no deficiency in service or unfair trade practice on the part of the OP No.3 as whatsoever EPF was deducted from the salaries of the employees, the same was credited in the account of M/s Yak Security Services as the OP No.3 was having contract with that firm i.e. M/s Yak Security Services and draw our attention towards documents Annexure R3/1 to Annexure R3/105. Learned counsel for the OP No.3 further argued that complainant has no concern whatsoever with the OP No.3 directly and if he has any grievances then OP No.1 and 2 are the responsible for the same and requested for dismissal of the complaint qua the OP No.3.

14.                   Learned counsel for the OP No.1 argued at length that OP No.1 is a retired Army Officer and after his retirement started Security Services Business under the name and style of M/s Yak Security Services, Noida. However, OP No.2 approached the OP No.1 with the proposal that whatever work of the contract his firm gets sponsored by the DGR, the same could be executed effectively by the OP No.2 as he has long experience in the field of Security Services. Accordingly, OP No.1 entered into partnership agreement with the OP No.2 vide agreement dated 10.06.2014 duly executed and registered with the Registrar of Firms at Delhi under the Partnership Act, 1932 and as per that agreement, the OP No.2 was liable for all the consequences whatsoever and requested for dismissal of the complaint qua the OP No.1.

15.                   Learned counsel for the OP No.2 also argued at length that complaint of the complainant is hopelessly time barred as the matter relates to the year 2005 to 2008 whereas the present complaint has been filed on 21.12.2011 and draw our attention towards the Section 24-A of the Consumer Protection Act, wherein the limitation for filing the complaint before Fora has been mentioned as 2 years. Learned counsel for the OP No.2 further argued that the complainant is demanding the amount only on a guess work whereas whatever amount was deducted from the salary of the complainant that amount was paid to the complainant. Learned counsel for OP No.2 further argued that complainant has totally failed to file any cogent/documentary evidence to prove that he was entitled to get Rs.42,000/- on account of EPF from the OP No.2 and lastly prayed for dismissal of the complaint qua the OP No.2.

16.                   After hearing both the parties, without commenting on merit, we are of the considered view that complaint of complainant is hopelessly time barred as the complainant is demanding the amount of Employee Provident Fund for a period of 01.12.2005 to 31.11.2008 but the present complaint has been filed on 21.12.2011 which is hopelessly time barred. As per Section 24-A of the Consumer Protection Act, 1986 wherein limitation period has been prescribed for filing complaint, which is reproduced as under:

Section 24A. Limitation Period: The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in Sub Section(1) a complaint may be entertained after the period of specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay. 

17.                   In the present complaint, complainant has neither filed any application for condonation of delay nor he has disclosed any reason explaining the delay for not filing the complaint within the limitation period before this For a. Even otherwise also, as per version of the complainant he was entitled to get approximately an amount of Rs.42,000/- on account of Employee Provident Fund whereas he has received Rs.8899/-. On the other hand, OP No.2 has taken stand that whatsoever amount was due the same had been paid to the complainant, meaning thereby that there was a dispute between the parties regarding the calculation of amount which cannot be decided in a summary way as elaborate evidence is required and to decide the such type of cases Civil Court is the best platform. Even, furthermore, so many agreements have been executed between the parties which are also required to be scrutinized and the same cannot be decided by the Fora in Summary way.

18.                   Resultantly, in the circumstances noted above, we are of the considered view that complaint of the complainant is hopelessly time barred and is also not maintainable before the Fora. Hence, the present complaint is hereby “dismissed” with no order as to cost. However, complainant is at liberty to redress his grievances before the competent court of law, if so advised. Exemption of time spent before this Forum is granted in terms of judgment of the Hon’ble Supreme Court India in case titled as “Luxmi Engineering Works Vs. P.S.G. Industrial Institute (1995)III SCC Page 583. File be consigned to the record room after due compliance.

Announced:

Dated:12.01.2017.

                                                                                    (ASHOK KUMAR GARG)

                                                                                    PRESIDENT, DCDRF Yamuna Nagar

 

 

                                                                                    (S.C.SHARMA)

                                                                                    MEMBER